From Duty to Warn to Duty to Protect: Risk and Legal Considerations for Mental Health Professionals
Melinda Monson, RN, Esq.
Partner at Stockman, O’Connor, Connors, PLLC

Psychiatrists are undoubtedly well aware of the major risk areas of the mental health profession, including commitment, electroshock, suicide and duty to warn.1 This article will focus on duty to warn and the more recently evolving concept of duty to protect as encompassed in Red Flag Laws.

 

Duty to Warn

Young psychiatrist looking stressed

In 1976, the California Supreme Court established the concept of duty to warn in the now familiar case of Tarasoff v. Regents of the University of California.2 Tarasoff involved the former patient of a therapist who allegedly killed a third party after revealing to the therapist his plan to do so. The therapist did not inform the intended victim of the patient’s intentions based upon the duty to uphold the privilege around patient confidentiality. The court held, however, that the duty to exercise reasonable care to protect foreseeable victims and to warn them of impending danger, including notifying the police, is an exception to what you as a health provider hold in the highest regard: your duty to keep confidential the communications of your patient.3 Thus, the duty to warn doctrine was forged and has been widely recognized or adopted to varying degrees by many states, through either statutes or case law. The doctrine is sometimes referred to as “duty to protect” with a focus on the corollary, that is, by warning an intended victim, the mental health professional is protecting that individual and others from foreseeable harm.4

PLEASE NOTE: In Connecticut, where the author of this article practices law, the facts of Tarasoff have been distinguished from those alleged in a number of lawsuits that have been filed against health care providers seeking to establish a duty to warn. However, the Connecticut Supreme Court has held that “given the appropriate factual circumstances, it might recognize a duty to protect a third person from the conduct of another,” leaving open the door to formally adopt Tarasoff in some manner. Kaminski v. Fairfield, 216 Conn. 29, 35 (1990). The import is that the duty to warn is a viable cause of action with real consequences to those who opt to uphold the confidences of a patient over the safety of a foreseeable victim.

Red Flag Laws

Fast forward forty years from Tarasoff to the growing popularity of Red Flag laws, also known as “extreme risk protection order” (ERPO), “risk warrant” and “gun violence restraining order.” The global purpose of these laws is to allow courts, using judicial oversight and due process, to temporarily remove firearms from individuals who have been reported as potentially dangerous to themselves or others.5 The role of the mental health professional in the obtaining of an ERPO or any of the other Red Flag law protections is still evolving.

The first ERPO law was enacted in Connecticut in 1999 following a mass shooting at the state lottery headquarters. However, there was an eight-year period after the enactment of Connecticut’s law during which very few guns were seized.6 Other than Indiana’s enactment of an ERPO (in 2005 after the fatal shooting of a police officer), the nation’s interest in firearm seizure legislation did not occur until after the mass shooting at Virginia Tech in 2007.7

As of April 2020, nineteen states have some form of ERPO law in place.8 While the actual policies to obtain an ERPO vary from state to state, the typical underlying process is for a law enforcement officer or family member to petition a court requesting a temporary suspension (usually up to one year) of an individual’s right to possess or purchase a firearm. The petition must be accompanied by supporting evidence that the individual is a danger to themself or others and may be issued on an emergent or non-emergent basis. Of note, most states exclude mental health professionals as the petitioner of an ERPO. In fact, Oregon’s law goes one step further to expressly state that “the court may not include in the findings any mental health diagnosis or any other connection between the risk presented by the respondent and mental illness” in determining whether an ERPO should be granted.9 If the petition is granted, the individual who is the subject of the order either relinquishes his or her firearm(s) or they are seized by law enforcement.

ERPOs are viewed by some as the next level up from some previously existing federal and state legislation designed to protect the public from individuals with mental illness and/or violent propensities. For example, most states already had laws in place mirroring the federal prohibitions on gun possession by mentally ill individuals. However, these laws do not provide a process whereby law enforcement or a family member can actually disarm a dangerous individual who has not been adjudicated mentally ill or committed. Similarly, although all fifty states have previously enacted domestic violence laws allowing a victim to seek a court order to protect further acts of violence, such restraining orders serve to protect specified individuals and to prevent the aggressor from harming that specific person. ERPO laws are more far-reaching and arguably proactive in nature. They are designed to prevent harm by removing guns, in the absence of an actual threat, when an individual is deemed to be at high risk of danger to themself or others.10 Moreover, one researcher believes that ERPO can accomplish what point-of-gun restrictions in many cases cannot. Most individuals in a suicidal crisis can legally possess guns and would pass a background check if they tried to buy a firearm. However, ERPOs rely on behavioral indicators of risk as defined in the law, documented by police officers, and endorsed by a judge.11

Effects of Red Flag Laws

The effects of the ERPO laws of Connecticut and Indiana, the two states that first enacted such laws, have been closely studied. The critical question is whether ERPOs are effective in preventing homicides and suicides. In almost every state that has enacted an ERPO law, it was in response to a mass-casualty shooting.11,12 To date, there is no solid scientific evidence that ERPOs can prevent mass-casualty killings. However, a study of pre-attack behaviors of active shooters in the United States between 2000 and 2013 may be instructive. The study was conducted by the FBI Behavioral Analysis Unit and reports that 62% of active shooters demonstrated observable concerning mental health behaviors and that mental health issues were the leading stressor (above financial strain, job-related concerns, marital problems and other issues). The study also found that 25% of active shooters had a diagnosed mental illness prior to the offense and that 48% had suicidal ideation or engaged in suicide-related behavior at some point prior to the attack. Further, 51% of the active shooters leaked an intent to commit violence but no instances of this leak were reported to law enforcement. Although one third of the shootings were random, the remainder were targeted at identified victims.13

Has the enactment and enforcement of ERPOs impacted the suicide rate in the United States? More than 1 million Americans attempt suicide each year and in 2017, 47,173 of these individuals died by suicide. In 2018, a team of psychiatrists who scrutinized the data following the enactment of Connecticut’s ERPO law, concluded that for every 10-20 gun-removal actions under such laws, one suicide was prevented. According to lead researcher, Jeffrey Swanson, a sociologist and professor in psychiatry and behavioral sciences, “the evidence on suicide prevention is a good enough reason for states to enact ERPOs and for the federal government to incentivize them with infrastructure grants.”14 Additionally, “ERPOs can also prevent suicides by limiting access to the most lethal method of self-injury. People who try to end their lives by other means usually survive; if they use a gun, there is almost never a second chance.”15

Role of Psychiatrists with Red Flag Laws

In light of evidence showing that ERPOs work, several questions emerge. How do ERPOs work best and under what circumstances? What are the appropriate roles of various individuals, including clinicians, to promote their effectiveness?16 Further, how can your role as a mental health professional be reconciled with laws that exclude you as the petitioner and/or disallow your findings of mental illness and diagnoses from being considered by a court? The answers may be found by returning to where we started – Tarasoff. This precedent setting case made clear that the duty to warn and ultimately protect an identifiable third party from foreseeable harm is paramount and trumps even the sanctity of the patient-provider relationship under the laws of many states. With the evolution of ERPOs, it has become increasingly clear that these laws serve an equally important role in preserving life through proactive intervention. Although the ability to petition the court for an ERPO may not fall within your realm according to the law of your state, you may nevertheless be called to play a critical role in advising family members or law enforcement of a patient’s concerning behavior which you believe may lead to harm.

Consider also your critical role in a scenario where in the course of treating your patient, you gather sufficient circumstantial evidence leading you to believe that “someone” is likely in danger. For example, your patient exhibits behaviors or makes statements which, without expressly stating intent or actually identifying a specific individual, in your clinical judgment triggers your duty to warn and duty to protect and the need to advance these duties. You will need to determine how best to advance this duty, such as contacting the patient’s family member or law enforcement.
Further, depending on the law of your state, you may be asked or possibly subpoenaed at some point during the process to provide clinical input and expertise as the court considers whether to grant or renew the petition. The party seeking or compelling your input and expertise may be your patient’s family member or loved one, a law enforcement officer, an attorney or even the judge considering the petition. Again, you will need to consider your duty to warn and duty to protect as balanced against the competing interest of your duty to maintain the confidentiality of your patient-provider relationship, and perhaps the equally valid concerns that you not stigmatize nor deter your patient from continuing to receive needed mental health treatment.

When faced with the reality of ERPOs within the context of your own practice, it would be prudent to seek consultation with your risk management professional and/or legal counsel for assistance with navigating through your established and evolving duties.

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About the Author

Melinda Monson, is a Registered Nurse and an Attorney. She has practiced law in Connecticut for 30 years both in the private setting and as a risk management attorney for a large health system. She is currently a partner in the law firm of Stockman, O’Connor, Connors, PLLC where her primary areas of practice include defense of medical malpractice and professional licensure matters, as well as serving as a consultant to health care clients on clinical risk management issues. She is also an adjunct professor in the Master’s in Health Care Administration program at Western Connecticut State University.

 

 

1 Pozgar, G. (2018). Legal Aspects of Healthcare Administration. Ed. 3; Jones & Bartlett Learning

2Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P2d 334 (1976)

3 Duty to Warn and Protect. Psychology 2020 (http://psychology.iresearchnet.com/counseling-psychology/counseling-skills-training/duty-to-warn-and-protect/)

4 Corey, Gerald Corey; Corey, Marianne Schneider; Callahan, Patrick (2007). Issues and Ethics in the Helping Professions (7th ed.). Belmont, CA: Brooks/Cole/Thomson Learning. ISBN 978-0-534-61443-0. OCLC 65465556

5 Merrefield, Clark (2019). Can ‘Red Flag’ Laws Curb Gun Violence? Here’s What the Research Says. Journalist’s Resource (https://journalistsresource.org/studies/govemment/criminal-justice/mass-shootings-red-flag-laws/)

6 Kivisto, Aaron J; Phalen, Peter L. (August 2018). Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981-2015. Psychiatric Services 69.8 (ps.psychiatryonline.org/), 855

7 Swanson, J; Norko, M; Lin, H., et al (2017). Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides? Law and Contemporary Problems 80: 179 – 208

8 Giffords Law Center (August 2020). Extreme Risk Protection Orders. (https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-orders/): 1-17

9 Frizzell, W.; Chien, J. (January 2019). Extreme Risk protection Orders to Reduce Firearm Violence. Psychiatric Services 70:1 (ps.psychiatryonline.org/), 75-77

10 Arnold, S; Desai, A; DeMatteo, D. (September 2018). Keeping Guns Away From Potentially Dangerous People. American Psychological Association: Vol 49, No. 8

11 Swanson, J. (August 2019). Red-Flag Laws Thwart Suicides. But Can they Catch Would-Be Mass Killers? The Washington Post

12 Kohrman, M; Stephens, A. (June 2020). States Are Embracing Red Flag Laws for Gun Owners. Here’s How They Work. The Trace (https://www.thetrace.org/2020/02/states-are-embracing-red-flag-laws-for-gun-owners-heres-how-they-work/)

13 FBI Behavioral Analysis Unit (November 2018). Quick Reference Guide: A Study of Pre-Attack Behaviors of Active Shooters in the U.S. Between 2000 and 2013 (https://www.fbi.gov/file-repository)

14 Swanson, J. (August 2019). Red-Flag Laws Thwart Suicides. But Can they Catch Would-Be Mass Killers? The Washington Post

15 ibid

16 Swanson, J. (October 2019). Understanding the Research on Extreme Risk Protection Orders: Varying Results, Same Message. Psychiatric Services 70:10 (ps.psychiatryonline.org/)

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